United States v. Arlen Jourdain ( 2006 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 05-1785
    ___________
    United States of America,                *
    *
    Appellee,                   *
    * Appeal from the United States
    v.                                 * District Court for the
    * District of Minnesota.
    Arlen Jourdain, also known as            *
    “Oatse,”                                 *
    *
    Appellant.                  *
    ___________
    Submitted: October 11, 2005
    Filed: January 10, 2006 (corrected February 17, 2006)
    ___________
    Before RILEY, HANSEN, and COLLOTON, Circuit Judges.
    ___________
    RILEY, Circuit Judge.
    Arlen Jourdain (Jourdain) was convicted by a jury of aiding and abetting an
    assault resulting in serious bodily injury. Following the verdict, the district court1
    denied Jourdain’s motion for judgment of acquittal and sentenced him to 48 months’
    imprisonment and 3 years’ supervised release. Jourdain appeals. Finding no errors,
    we affirm.
    1
    The Honorable James M. Rosenbaum, United States District Judge for the
    District of Minnesota.
    I.     BACKGROUND
    On July 1, 2002, a growing animosity between Clayton Cobenais (Cobenais)
    and three men, including Jourdain, culminated in the shooting and death of Cobenais.
    On that day, beginning around 10:00 a.m., Jourdain, his first cousin Harry Desjarlait
    (Desjarlait), and Duane Maxwell (Maxwell) spent the day cruising together in
    Maxwell’s car around the Red Lake Indian Reservation in northern Minnesota,
    drinking alcohol and smoking marijuana. Maxwell drove the vehicle, Desjarlait sat
    in the front passenger seat, and Jourdain sat in the backseat. Maxwell’s .22 caliber
    rifle was located in plain view in the vehicle’s passenger compartment.
    Jourdain, Desjarlait, and Maxwell were close friends and considered themselves
    like brothers. They were not so close, however, to Cobenais, who was Jourdain’s and
    Desjarlait’s cousin. Rather, the trio had a hostile relationship with the victim.
    Desjarlait had engaged in one physical fight and over ten arguments with Cobenais.
    Maxwell believed Cobenais rear-ended Maxwell’s girlfriend’s car a few weeks before
    the shooting, causing her to break her collarbone. Maxwell threatened to kill
    Cobenais. Approximately four days before Cobenais was murdered, Cobenais
    threatened Jourdain and his friends with a rifle.
    Alan Matrious (Matrious), a cousin of Jourdain, accompanied the trio for part
    of the day on July 1. During that time, Jourdain and the other men solicited Matrious
    to shoot another man. Around 5:30 p.m., the trio took Matrious home because
    Matrious was drunk. The remaining three men continued to cruise together. At about
    9:00 p.m., the trio encountered Cobenais walking in the opposite direction on the other
    side of the street. Upon seeing Cobenais, Maxwell made a u-turn and pulled his car
    onto the shoulder of the road alongside Cobenais. Jourdain and Desjarlait both
    jumped out of the car, confronted Cobenais, and “had words.” Maxwell remained in
    the car and fired his rifle approximately six times, hitting Cobenais once in the
    stomach, once in the forearm, and twice in the chest.
    -2-
    Albert Lussieur (Albert), an elderly neighbor to Cobenais, witnessed part of the
    incident from his yard on the opposite side of the street, although his view was slightly
    obstructed by trees and by the angle of Maxwell’s car. Upon hearing yelling and
    gunshots, Albert started running toward the group. Jourdain and Desjarlait ran from
    Cobenais and jumped back into Maxwell’s car. As the men fled the scene, Jourdain
    waved his arm out the car window and “war whoop[ed].” When Albert reached
    Cobenais, he was face-down and taking “big breaths.”
    Miriam Lussieur (Miriam) heard the gunshots and was alerted to the incident
    by her six-year-old grandson, R.A. Miriam telephoned “911” and noticed Cobenais
    was still “moving around.” R.A. witnessed the incident while looking out a window
    facing the street, and he told his grandmother he recognized his dad’s friends and that
    Desjarlait had shot Cobenais. Although R.A. knew Jourdain, he did not mention
    Jourdain to Miriam. Cobenais died in Miriam’s yard.
    After the trio fled the scene, they discarded the rifle in a lake, left Maxwell’s
    car at a friend’s home, and received a ride to another friend’s home. There, Maxwell
    confessed to killing Cobenais. On July 2, 2002, Maxwell was arrested and released.
    He later committed suicide. On July 2, Jourdain and Desjarlait went to the Beltrami
    County Law Enforcement Center. When Jourdain was asked why he was there,
    Jourdain responded he was “turning [him]self in” because he was “involved.”
    On October 11, 2002, Desjarlait pled guilty to the second-degree murder of
    Cobenais. Desjarlait later testified before a federal grand jury investigating
    Cobenais’s murder and again at Jourdain’s trial. During direct examination at
    Jourdain’s trial, using both Desjarlait’s plea colloquy and grand jury testimony, the
    government elicited testimony from Desjarlait that both he and Jourdain exited
    Maxwell’s car on July 1, 2002; that he exited the car intending to assault Cobenais;
    and that, although Jourdain did not discuss attacking Cobenais, when the men saw
    Cobenais, their minds “click[ed] together.”
    -3-
    On October 21, 2003, Jourdain was indicted for (1) conspiring to commit
    assault resulting in death and serious bodily injury, (2) aiding and abetting murder, (3)
    aiding and abetting assault resulting in serious bodily injury, and (4) aiding and
    abetting the discharge of a firearm during a crime of violence. The district court
    dismissed Count 4 at the close of the prosecution’s case. The jury acquitted Jourdain
    of Counts 1 and 2, but found him guilty with respect to aiding and abetting assault
    resulting in serious bodily injury. After determining the base offense level for
    aggravated assault, the court applied two Sentencing Guidelines enhancements for
    (1) discharge of a firearm, and (2) permanent and life-threatening injury. The court
    then sentenced Jourdain to 48 months’ imprisonment.
    Jourdain appeals, asserting (1) the evidence is insufficient to support his
    conviction, (2) the district court erred in imposing enhancements for discharge of a
    firearm and the degree of injury, and (3) the district court violated Federal Rule of
    Evidence 404(b) in admitting evidence concerning Jourdain’s alleged solicitation of
    Matrious to shoot another man.
    II.   DISCUSSION
    A.      Sufficiency of the Evidence
    Jury verdicts are not overturned lightly. See United States v. Burks, 
    934 F.2d 148
    , 151 (8th Cir. 1991) (citing United States v. Knife, 
    592 F.2d 472
    , 475 (8th Cir.
    1979)). We will reverse the jury’s verdict for insufficient evidence “only if no
    reasonable jury could have found [Jourdain] guilty beyond a reasonable doubt.”
    United States v. Henderson-Durand, 
    985 F.2d 970
    , 975 (8th Cir. 1993) (citation
    omitted). “The jury’s verdict must be upheld if there is an interpretation of the
    evidence that would allow a reasonable-minded jury to conclude guilt beyond a
    reasonable doubt.” United States v. Baker, 
    98 F.3d 330
    , 338 (8th Cir. 1996) (citation
    omitted). In doing so, we view the evidence in the light most favorable to the jury’s
    verdict, resolving any evidentiary conflicts in the government’s favor. United States
    v. Lee, 
    356 F.3d 831
    , 836 (8th Cir. 2003) (citation omitted).
    -4-
    To support a conviction for aiding and abetting assault, the defendant’s mere
    presence or acquiescence in the crime itself is insufficient. See United States v.
    Thomas, 
    469 F.2d 145
    , 147 (8th Cir. 1972) (citations omitted). Rather, “there must
    exist some affirmative participation which at least encourages the perpetrator.” 
    Id. Jourdain contends
    no reasonable jury could have found him guilty because the
    government failed to prove Jourdain participated in any assault of Cobenais, and
    argues Jourdain’s mere presence at the scene of Cobenais’s death is insufficient to
    expose him to criminal liability.
    Viewing the evidence in the light most favorable to the jury’s verdict, we
    conclude the record belies Jourdain’s assertions. The jury heard evidence concerning
    Jourdain’s extremely close relationship to Desjarlait and Maxwell, as well as the trio’s
    common dislike of, and previous confrontations with, Cobenais. On July 1, 2002, the
    three spent the day together in Maxwell’s car in which Maxwell’s .22 caliber rifle was
    in plain view. They unsuccessfully solicited Matrious to shoot another individual.
    Later, upon seeing Cobenais walking by himself, Maxwell pulled his car alongside
    Cobenais, allowing Jourdain and Desjarlait to exit the car and confront Cobenais. At
    trial, Desjarlait testified that, at the time he exited the car, he intended to assault
    Cobenais. Desjarlait testified before the grand jury, which testimony was read at trial,
    that Jourdain did not say anything regarding assaulting Cobenais because “it was
    probably like something on our minds to, you know, like click together.” After being
    stopped by Jourdain and Desjarlait, Cobenais was shot by Maxwell. When the trio
    fled the scene, Jourdain waved his arm out the car window and “war whoop[ed].”
    Considered together, Jourdain’s actions on July 1, 2002, constituted more than “mere
    presence.” The evidence supports a reasonable inference Jourdain’s affirmative
    participation encouraged and aided the shooting of Cobenais. See 
    Thomas, 469 F.2d at 147
    .
    The facts of Thomas support our conclusion. In Thomas, the two defendants
    and a third unidentified man came upon a pickup truck and sought a ride from the
    truck’s owner. 
    Id. The owner
    refused, and the unidentified man entered the truck,
    -5-
    pulled a gun on the owner, and hit him with the gun. One of the defendants pulled the
    owner from the truck. The defendants immediately jumped into the truck, and the
    unidentified man attempted to back over the owner lying on the ground. The trio then
    drove the truck toward town and abandoned the truck. Later, one defendant bragged
    how he held up a truck at gunpoint. The other defendant returned to the abandoned
    truck and removed gas from it. 
    Id. In determining
    whether sufficient evidence existed
    to sustain the conviction for aiding and abetting robbery and assault with a dangerous
    weapon, the Thomas court held:
    [A]lthough neither defendant actually held the gun on the victim, the
    evidence is such that a reasonable inference can be made that they were
    both immediately nearby and fully condoned the actions of their
    companion and assailant. The jury could also logically infer that the
    physical presence of the defendants was intimidating to the victim and
    thereby encouraged or stimulated the unidentified [man] to proceed in
    the assault and robbery.
    
    Id. Thus, the
    court sustained the defendants’ convictions. 
    Id. at 148.
    In support of his position, Jourdain cites United States v. Grey Bear, 
    828 F.2d 1286
    (8th Cir. 1987), rev’d sub nom. on other grounds United States v. Cavenaugh,
    
    948 F.2d 405
    (8th Cir. 1991). The Grey Bear court found insufficient evidence
    supported a conviction for assault resulting in serious bodily injury for one of the
    defendants, Maynard Dunn (Dunn). 
    Id. at 1295-96.
    The court rejected the argument
    Dunn could have implicitly encouraged the other defendants to attack the victim,
    “[g]iven the lack of any context in which [Dunn’s] alleged punch was thrown . . . and
    Dunn’s statement . . . that he did not want to get involved.” 
    Id. at 1295.
    Contrary to
    Grey Bear, however, the facts of this case demonstrate more than mere presence at the
    crime scene or association with the other assailants. While Jourdain may not have
    pulled the trigger, a jury reasonably could conclude–after considering Jourdain’s
    actions before, during, and after the shooting–that Jourdain was involved and fully
    condoned his friends’ actions, that his physical presence and confrontation of
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    Cobenais intimidated Cobenais, and that Jourdain’s involvement encouraged Maxwell
    to shoot Cobenais.2 See 
    Thomas, 469 F.2d at 147
    . A reasonable jury also could find
    Jourdain participated and aided in stopping Cobenais and lining Cobenais up for the
    shooting.
    Jourdain further contends the government failed to prove Cobenais suffered
    “serious bodily injury” because Cobenais died from the gunshot wounds he sustained
    and there was no separate assault. We disagree. “Serious bodily injury” is defined
    in 18 U.S.C. § 1365(h)(3)3 and includes injury involving (1) a substantial risk of
    death, or (2) extreme physical pain. 18 U.S.C. § 1365(h)(3)(A), (B). After the
    shooting, when Albert arrived at Cobenais’s side, Cobenais was alive, taking deep
    breaths, and moving around. Because there is sufficient evidence that, as the
    government puts it, “Cobenais’ death was neither instant nor painless,” we conclude
    Cobenais obviously suffered “serious bodily injury” within the meaning of section
    1365(h)(3).
    Cobenais received four gunshot wounds: two to his upper chest, one to his
    stomach, and one defensive wound to his left forearm, which often occurs when a
    person raises his arms to defend himself from attack. Further, Cobenais was breathing
    when Jourdain fled the scene and still was moving when “911” was called. Cobenais
    then bled to death, dying from “[e]xsanguination, or hemorrhage, due to multiple
    2
    Although, as Jourdain points out, the evidence contains some inconsistencies
    regarding Jourdain’s precise role in the assault, the inconsistencies do not dictate a
    contrary result, for “[t]he resolution of any such inconsistencies and contradictions is
    left to the jury.” United States v. Crow Dog, 
    532 F.2d 1182
    , 1195 (8th Cir. 1976).
    “If the evidence rationally supports two conflicting hypotheses, the reviewing court
    will not disturb the conviction.” 
    Burks, 934 F.2d at 151
    (citing 
    Knife, 592 F.2d at 475
    ).
    3
    Title 18 U.S.C. § 113 prohibits assault resulting in serious bodily injury and
    refers to 18 U.S.C. § 1365(h)(3) for the relevant definition of “serious bodily injury.”
    See 18 U.S.C. § 113(a)(6), (b)(2).
    -7-
    gunshot wounds.” From these facts, the jury reasonably could conclude Cobenais
    sustained “serious bodily injury” within the meaning of section 1365(h)(3) prior to his
    death.4 See United States v. Two Eagle, 
    318 F.3d 785
    , 791 (8th Cir. 2003) (stating
    “whether an injury is serious presents a question of fact for the jury”). Accordingly,
    we reject Jourdain’s claim of error on this issue.
    B.     Sentencing Guidelines Enhancements
    Jourdain next argues the district court erred when it applied two enhancements
    to his base offense level for (1) discharge of a firearm and (2) permanent or life-
    threatening bodily injury. We review the district court’s interpretation and application
    of the Sentencing Guidelines de novo and its factual findings regarding enhancements
    for clear error. United States v. Noe, 
    411 F.3d 878
    , 888 (8th Cir. 2005) (citation
    omitted).5
    The Guidelines authorize holding defendants responsible for “all reasonably
    foreseeable acts . . . of others in furtherance of the jointly undertaken criminal activity,
    that occurred during the commission of the offense.” U.S.S.G. § 1B1.3(a)(1)(B). In
    aggravated assault cases, a five-level enhancement is applied for the discharge of a
    firearm. U.S.S.G. § 2A2.2(b)(2)(A). Jourdain contends the firearm enhancement was
    applied erroneously because he was not involved in the shooting and the use of the
    firearm was not foreseeable to him. We disagree. The .22 caliber rifle was visible in
    the passenger compartment in the car in which Jourdain was riding. A few hours
    4
    Our holding is limited to those cases in which there is sufficient evidence to
    support a jury’s conclusion the victim suffered “serious bodily injury” before his
    death. Thus, we do not reach the broader question of whether all injuries resulting in
    another person’s death, even “instantaneous” death, necessarily constitute “serious
    bodily injury” under 18 U.S.C. §§ 113 and 1365(h)(3).
    5
    We need not review whether Jourdain’s sentence is reasonable in light of 18
    U.S.C. § 3553(a) because Jourdain has not challenged the reasonableness of his
    sentence. Jourdain challenges only the district court’s application of the Sentencing
    Guidelines.
    -8-
    before Cobenais’s murder, Jourdain unsuccessfully solicited Matrious to shoot another
    man. Jourdain and his close friends had a history of hostility toward Cobenais. The
    shooter, Maxwell, a few weeks before the shooting, threatened to kill Cobenais.
    When the trio encountered Cobenais walking alone, Jourdain jumped out of the
    vehicle with Desjarlait, confronted Cobenais, and after the shooting, “war whoop[ed]”
    as the three fled the scene. Because there is sufficient evidence the use of the firearm
    was reasonably foreseeable to Jourdain, we conclude the district court properly
    applied the five-level enhancement for the discharge of a firearm pursuant to U.S.S.G.
    §§ 1B1.3(a)(1)(B) and 2A2.2(b)(2)(A).
    We reach the same conclusion with regard to the district court’s application of
    the five-level enhancement pursuant to U.S.S.G. § 2A2.2(b)(3)(C) for degree of bodily
    injury.6 Although Cobenais ultimately died from the gunshot wounds he sustained,
    it does not follow that he did not sustain permanent or life-threatening bodily injury
    within the meaning of the Sentencing Guidelines. For similar reasons as discussed
    previously, sufficient evidence exists to show the gunshot wounds Cobenais sustained
    caused him permanent or life-threatening bodily injury separate and apart from his
    subsequent death. Thus, we conclude the district court properly applied this
    enhancement as well.
    C.    Admission of Rule 404(b) Evidence
    Finally, Jourdain contends the district court erred in admitting Rule 404(b)
    evidence that before Cobenais’s murder Jourdain and his friends solicited Matrious
    to shoot another man, arguing the evidence was not relevant, was not proven by a
    preponderance of the evidence, and was overly prejudicial. Rule 404(b) provides
    6
    U.S.S.G. § 2A2.2(b)(3)(C) provides for a seven-level enhancement. However,
    cumulative adjustments from the application of U.S.S.G. § 2A2.2(b)(2)(A), the
    firearm enhancement, and U.S.S.G. § 2A2.2(b)(3), the degree of bodily injury
    enhancement, cannot exceed ten levels. See U.S.S.G. § 2A2.2(b). Because the district
    court imposed a five-level enhancement for the discharge of a firearm, any
    enhancement for degree of bodily injury could not exceed five levels.
    -9-
    evidence of other crimes or wrongs is admissible to prove “intent, . . . knowledge, . . .
    or absence of mistake or accident.” Fed. R. Evid. 404(b). It is a rule of inclusion, not
    exclusion. United States v. Loveless, 
    139 F.3d 587
    , 591 (8th Cir. 1998). “In order for
    evidence of prior bad acts to be admissible, the evidence must be: (1) relevant to a
    material issue; (2) proved by a preponderance of the evidence; (3) higher in probative
    value than in prejudicial effect; and (4) similar in kind and close in time to the crime
    charged.” 
    Id. at 592
    (citation omitted).
    We review the district court’s decision to admit Rule 404(b) evidence for an
    abuse of discretion. United States v. Tomberlin, 
    130 F.3d 1318
    , 1320 (8th Cir. 1997).
    “Giving great deference to the district court’s determination in balancing the
    prejudicial effect and probative value of evidence of other crimes or acts, we will
    reverse the district court’s evidentiary decision only when the evidence admitted
    clearly has no bearing on any issue involved.” United States v. Claybourne, 
    415 F.3d 790
    , 797 (8th Cir. 2005) (internal quotation omitted).
    We conclude the district court’s decision to admit this evidence was not an
    abuse of discretion. First, the evidence was relevant to the issue of Jourdain’s intent.
    See United States v. Johnson, 
    934 F.2d 936
    , 940 (8th Cir. 1991) (stating where intent
    and knowledge are material issues “evidence of other acts tending to establish [intent]
    is generally admissible”) (citation omitted) (alteration in original). While Jourdain
    argues he was merely present when Cobenais was shot and killed, evidence that he
    and his companions solicited Matrious to shoot another man was relevant to establish
    (1) whether the men shared a joint criminal purpose, (2) whether Jourdain had
    knowledge of the violence potential of his buddies and a shooting was foreseeable to
    Jourdain, and (3) whether the shooting of Cobenais after Jourdain confronted
    Cobenais could have been a mistake or accident. Second, Matrious’s testimony
    satisfied the requisite burden of proof to admit evidence of Jourdain’s solicitation.
    See United States v. Yellow, 
    18 F.3d 1438
    , 1441 (8th Cir. 1994) (quoting United
    States v. Huddleston, 
    485 U.S. 681
    , 685 (1988)) (“Rule 404(b) evidence ‘should be
    admitted if there is sufficient evidence to support a finding by the jury that the
    -10-
    defendant committed the similar act.’”). While Matrious’s credibility was attacked
    at trial, it was the jury’s duty to judge credibility and choose what evidence upon
    which to rely. See United States v. Rosso, 
    179 F.3d 1102
    , 1107 (8th Cir. 1999).
    Finally, the probative value of this evidence outweighed its potential prejudicial effect.
    Accordingly, we find no error on this evidentiary issue.
    III.   CONCLUSION
    For the foregoing reasons, we affirm Jourdain’s conviction and sentence.
    ______________________________
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